Child Justice Workshop, with Deputy Minister in attendance

NCOP Security and Justice

27 May 2015
Chairperson: Mr D Ximbi (ANC, Western Cape)
Share this page:

Meeting Summary

The workshop on Child Justice was held to ensure that Members understood the Child Justice Act (CJA) and the implementation challenges related thereto prior to conducting an oversight visit to the Child Justice Centre in North West Province towards the end of June 2015.

The Deputy Minister briefed the Committee on the implementation of the Child Justice Act, the idea of which was to try and rehabilitate children and get them out of the formal criminal justice system and on to diversion programmes. The Act would stand or fall on its implementation, which required oversight from the Committee.

The President signed the Bill into the Child Justice Act 75 of 2008 on 7 May 2009. The Act was aimed at protecting the rights of children accused of committing crimes as well as establishing a more efficient and child friendly criminal justice system. It also sought to ensure that the roles and responsibilities of all those involved in the process were clearly defined, in order to facilitate inter-departmental cooperation.

Generally the legislation was procedural, it dealt with issues such as police powers and duties, arrest and court procedures. It also introduced new procedures in law, such as diversion and assessment, and raised the age of criminal responsibility. The Act had a ‘restorative’ mindset with the aim to prevent future crime.

The Act encouraged the release of children to the care of their parents or other suitable adults. It entrenched the Constitutional requirement that detention should be a measure of last resort, both with regard to awaiting trial and to sentencing.

A child in the child justice system would first be assessed by a probation officer, then go to a preliminary inquiry, and then a trial. At any point in this process they could be diverted out of the justice system to a diversion programme that aimed to shield children from the negative effects of the criminal justice system, but could only be entered into when the child acknowledges his or her crime.

The Act saw children of 14 years and older as having full criminal capacity and therefore being responsible for their actions. Many stakeholders had proposed that this be made 12 years as minimum age of criminal capacity.

The collection of statistics had been problematic since the implementation of the Act began. Statistics were important to measure the impact of the Act and to identify and address challenges in implementation. Vital information, such as the number of charges brought against children and the number of children diverted was being omitted from reports. There were often iinaccurate and contradictory statistics, iinconsistent reporting, a lack of systematic year-on-year reporting, an absence of detailed analysis of the statistics, and gaps in information and statistics.

This meant that there was an inconclusive picture of implementation of the CJA and of children in conflict with the law. Progress as reported by the reports could therefore be in contrast to ‘real progress’ and it was unclear whether as much progress has been made as was implied.

Parliament needed to strengthen its oversight on the implementation of the Act, and establishing consistent joint sittings would be the first step to achieve this. The Judicial Matters Amendment Bill 2 of 2015 would combine the Child Justice Act Annual Report with that of the Departmental Annual Report, which weakened parliamentary oversight and removed political accountability towards children.

The Intersectoral Committee lacked capacity to fully implement the Act. As a result there were delays in reporting and less implementation than some had hoped for.

Members asked how ready the police were to implement that Act, if there was enough awareness about the Act for it to be properly implemented, and whether the Department of Social Development (DSD) had the capacity to implement the Act.

Members commented that it was important to commit to making radical change and to move out of the silo mentality. They appealed to the Deputy Minister to raise the issue of reports being submitted late in a Cabinet meeting and encourage other Ministers to assist the DG in getting full reports on time. If there was a lack of political will then this experience would persist. The combination of the Portfolio Committees of Justice and of Correctional Services placed a heavy workload on the Committee and made effective oversight more difficult. 

Meeting report

The Chairperson explained that the Child Justice Act, adopted in November 2008 and signed into law in May 2009, sought to ensure that children in conflict with the law were treated in a manner that took into account their age, vulnerability and special needs. The best interests of the child were paramount. The purpose of the dialogue was to ensure that Members understood the Child Justice Act and the implementation challenges related thereto prior to conducting an oversight visit to the Child Justice Centre in North West Province towards the end of June 2015. He hoped that this would be the first of many similar engagements.

Mr John Jeffery, Deputy Minister, Department of Justice and Constitutional Development (DoJCD), said that the Act came into effect on 1 April 2010 and created a new child justice system. The idea of the Act was to try to rehabilitate children and get them out of the formal criminal justice system and on to diversion programmes. He had chaired the technical subcommittee that was processing the Bill and so had been very involved with policy decisions made at the time.

The Act would stand or fall on its implementation. This was where the Parliamentary Committees played an important oversight role. The Parliamentary Research Team had produced a report on the Act, which the Department agreed with in parts and disagreed with in others. He requested an opportunity to respond to the report.

The number of children entering the system was decreasing. Mr Jeffery had visited the Nerina One Stop Youth Centre in Port Elizabeth and learned from the staff there that prior to the Act a large number of children used to come from the nearest police station; that number had dropped substantially. The view was that the police did not feel confident in their understanding of the Act, despite the training they had received, and therefore were hesitant to make arrests. This needed to be looked into.

There had also been a slight decrease in preliminary assessments. These had to be conducted by probation officers who were also social workers. During the Bill process the drafters had asked if there were enough social workers to do this and were assured by the Department that there were. Now some role players were questioning whether this was the case or not. There was concern that some preliminary assessments were not being done thoroughly enough.

The number of children in custody awaiting trail had been reduced to fewer than 200. Cases existed of children being held in prison rather than in secure care facilities. The number of children in prison had been reduced from 94 in 2011/12 to 59 in 2015.

It was not clear if the system was able to pick up whether children going through diversion were completing the programme. The intention was that if they did not comply they came back into the system. What were the levels of recidivism? Had those who were reoffending completed the programme?

The intention was to avoid separating children from their families in terms of the distance of their secure care facility from home. However, the numbers of children did not justify numerous facilities across the country. Bisho Child and Youth Care Centre could take a large number of children but only had 35 at that time. The feeling in the Department was that it was better to focus on providing a good service at fewer facilities than to spread their efforts too thinly.

There was no provision for the involvement of the Department of Correctional Services (DCS) in the facilities, which was a mistake. At Bisho Child and Youth Care Centre the officials did not have the skills to deal with difficult children. There had been escalating tensions at the facility and the children had to be put into St Alban’s prison where their behavioural problems could be better managed. Secure care facilities were the responsibility of the DSD but there was a role for DCS to assist as their staff were trained to deal with aggression and violence.

There were three One Stop Centres, one of which would be visited by Members during the oversight visit. Members had previously asked what was being done for children from rural areas. The difficulty was that there might be only a handful of children going through a facility at any given time. Would this justify the use of resources to make many facilities easily accessible for parents?

The Act was a good one but implementation was where the challenge lay, and it was important that the Select Committee monitor that. He hoped that the result could improve the criminal justice system for children in South Africa.

Overview, history and international obligations of child justice in South Africa
Mr Lorenzo Wakefield, Child Justice Alliance, began his presentation by discussing the core tenets of the International Convention on the Rights of the Child.

The United Nations Convention on the Rights of the Child (CRC) dictated that the state must act in the best interests of the child. It granted the child the right to participate in decisions on matters in relation to his/her life, the right not to be discriminated against, and the right to survival and development. Article 40 stated that there must be a separate criminal justice system for children, and Article 37 dealt with children in detention.

The South African Constitution also required that a child’s best interests have paramount importance in every matter concerning the child. It also stated the right of a child to be kept separately from persons over 18 while in detention, and the right of a child not to be detained except as a measure of last resort and then only for the shortest possible period.

Since the early 1990’s there had been a heightened awareness of the plight of children accused of crimes and their treatment within South Africa’s criminal justice system. There had been numerous unsuccessful piecemeal attempts by the government to amend existing legislation to improve the situation relating to juveniles accused.

The South African Law Commission (SALC)’s Project Committee on Juvenile Justice resulted in a report and subsequent draft Bill in 2000. The Bill addressed the problems encountered in the field of child justice as it existed within the framework of current legislation.

In June 2008 the Bill passed at the first reading in the National Assembly (NA); in September 2008 the National Chamber of Provinces (NCOP) passed it; and in November 2008 it passed at the second reading by the NA and was sent to the President for assent and signature. On 7 May 2009, the President signed the Bill into the Child Justice Act 75 of 2008.

The Act was aimed at protecting the rights of children accused of committing crimes as well as establishing a more efficient and child friendly criminal justice system. It also sought to ensure that the roles and responsibilities of all those involved in the process were clearly defined, in order to facilitate inter-departmental co-operation.

The Act recognised the fact that children did commit serious offences and that they must be held accountable for their actions and take responsibility for the human rights and fundamental freedom of others.

Generally the legislation was procedural, it dealt with issues such as police powers and duties, arrest and court procedures. Furthermore the Act regulated the detention and release of children, providing definite guidelines for the exercise of judicial discretion in detaining children in prison while awaiting trial. More importantly, there were a number of provisions in the Act that significantly changed the present state of our child justice law.

It also introduced new procedures in law, such as diversion and assessment, and raised the age of criminal responsibility.

Shadowing the child through the Child Justice System
Ms Zita Hansungule, Centre for Child Law, University of Pretoria, gave an overview of following the process of a child going through the child justice system. The Act was mainly procedural in nature, except for the changes to criminal capacity, and it had a ‘restorative’ mindset with the aim to prevent future crime. The Act was protective of children’s rights and remained pragmatic; children could be sentenced for up to 25 years.

The Act encouraged the release of children to the care of their parents or other suitable adults. It entrenched the Constitutional requirement that detention should be a measure of last resort, both with regard to awaiting trial and to sentencing.

To illustrate the Act, Ms Hansungule depicted each stage from the perspective of two different hypothetical offenders. The first was an 11 year old girl charged with a schedule three offence. The second was a 16 year old boy charged with a schedule one offence. Offences were ranked one through to three, with schedule three being the most serious.

Zita was an 11 year old girl who lived with her mother and father in a middle class home. One day at school she had an argument during class with an 11 year old class mate, Tsumi. After school, several witnesses saw Zita push Tsumi from behind into the path of an oncoming car.  Tsumi suffered a fractured skull and a broken arm and leg. Zita was charged with attempted murder.

Morgan was in grade 10. He was rebellious and often in trouble at school. He was an orphan and lived in an apartment with his 24 year old brother who worked at a Romans Pizza. Morgan went out one night and spray painted an Eskom wall with the words “Smaller carbon footprint – the lights are on: Is there anyone at home?” When confronted, he admitted it was his work. The Eskom manager said it would cost R1500 to repaint.

Chapter three of the Act set out three ways of securing the attendance of a child at a preliminary inquiry (which was considered the first appearance): a written notice to appear; summons; and arrest. They were set out in this order because the Act was trying to discourage the automatic use of arrest.

If Zita or Morgan were arrested and taken to the police station by the police, the next issue was the approach to be followed when considering the release or detention of a child after arrest. Chapter 4, Section 21 gave an overview of the approach, and Section 22 and 23 went into more detail.

Before the preliminary inquiry a probation officer would assess every child, irrespective of the child’s age or of the offence. The assessment report was important for decisions being made by the prosecutor and/or at the preliminary inquiry.

Diversion was a new feature in the law. It could happen prior to (and instead) of the preliminary inquiry, at the preliminary inquiry (prior to and instead of the trial), or during the trial. Chapter 8 contained a full discussion of diversion, which could be done in respect of Schedule One offences. Previously the prosecutor concluded all diversions, and most of these were for Schedule One offences (but not all). The new Act stated that it must be made an order of court and this was to be concluded in chambers.

Schedule 2 and 3 offences (plus Schedule 1 cases where the prosecutor did not divert) would go to the preliminary inquiry. This was held pre-trial and was similar to a ‘case conference’. The idea was born from the fact that the previous system operated like a ‘conveyer belt’. It represented a moment in which all the role players focused (jointly) on deciding the correct action to be taken. It formed an informal pre-trial procedure, which was inquisitorial in nature.

Chapter 4 dealt with the options of release versus placement. Children could be placed in a child and youth care centre or in a prison. Returning to the hypothetical cases, Zita was below 14 and therefore could not be held in a prison, although she could be put in secure care. The factors that the court would consider would be set out in Section 29(2). Morgan had only committed a Schedule 1 offence and had a home where he lived with his brother, who was probably an appropriate adult.

Child justice courts were not very different from how the old ‘juvenile court’ had operated. If children were prosecuted in a District, Regional or High Court, the Act and its procedures would apply. There was a commitment to trying to reduce the number of remands and the duration thereof.

Under Section63 (2), where a child and adult were charged together in the same trial in respect of the same facts a court must apply the provisions of this Act in respect of the child and the Criminal Prosecution Act (CPA) in respect of the adult. This had been in the news recently with regard to the Eugene Terreblanche case.

Regarding privacy and the media, Section 63 (5) stated that no person may be present at any sitting of a child justice court, unless his or her presence was necessary in connection with the proceedings of the child justice court or the presiding officer had granted him or her permission to be present. The CPA stated that the press could not publish any information that identifies or may identify a child.

The general rule was that there must always be a probation officer’s pre-sentence report prior to the sentencing of a child. The Act included a wide range of sentencing options, but imprisonment should only be used as a measure of last resort and then for the shortest possible time. There was a prohibition on prison sentences for children under the age of 14 (at the time of sentence) and certain criteria linked to the severity of the offence in respect of children older than 14. Long sentences remained available for very serious cases – up to 25 years.

Discussion
Mr J Julius (DA, Gauteng) asked how ready the police were to implement that Act, what was the reality on the ground?  In Krugersdorp a centre where children were kept was closing, what would be the impact of that?

Ms G Manapole (ANC, Northern Cape) asked if there were enough awareness about the Act for it to be properly implemented. How would serious offences be dealt with?

Ms L Wilson (DA) asked whether the DSD had the capacity to implement the Act. Research indicated that South Africa was 51 000 social development workers short of what it needed. Before the preliminary enquiry children were assessed by social workers, so this serious shortage would affect that. The outcome was that welfare organisations were expected to do it without remuneration.

Mr M Mohapi (ANC, Free State) asked about the child’s right to remain silent.

It was agreed, at the Deputy Minister’s suggestion, that the questions about implementation would not be answered as the presentations covering implementation were still to be made.

Ms Hansungule said that all the rights in the Constitution pertaining to criminal proceedings applied to children as they went through the criminal justice system. Children’s parents or guardians were also requested to be there as a form of protection. They also had legal representation when they went to trial.

Systemic implementation challenges experienced in the application of the Child Justice Act
Mr Wakefield presented information about the implementation of the Act based on findings from desktop-based research. His presentation covered Criminal Capacity provisions, the impact of the Sexual Offences Act on the child justice system, statistics, accountability and oversight, and recommendations.

Criminal capacity
Previously, under Common Law, a child below 7 years was irrebuttably presumed to be doliincapax(deemed incapable of forming the intent to commit a crime)a child between 7-14 years was rebuttably presumed to be doliincapax, and a child above 14 years was regarded as having full criminal capacity. Under international law there was no specified age for criminal capacity, but the Committee on the Rights of the Child recommended a minimum age of criminal capacity as 12 years. Developing medical science also pointed to later development of children’s mental capacity.

Under the Child Justice Act, a child below 10 years was irrebuttably presumed to be doliincapax, a child between ages of 10 – 14 years was rebuttably presumed to be doliincapax, and a child above 14 years was regarded as having full criminal capacity. However, the Act provided that the Minister of Justice had to review the minimum age of criminal capacity after 5 years.

The DoJCD hosted a workshop on the amendments to the CJA in relation to criminal capacity, and multiple stakeholders agreed to 12 years as the minimum age of criminal capacity. The impact of this would be that fewer children entered the justice system and the pool of children benefiting from social services may increase. The Bill with amendments was yet to be tabled in Parliament, despite the 1 April 2015 deadline.

The Sexual Offences Act criminalised consensual sexual behaviour by children between the ages of 12 and 16 years. Upon conviction of any sexual offence a child’s name was placed on the Sexual Offenders Register and in certain instances for life. There was an individualised approach to screening the possibility of a child’s name on the register.

Statistics
The collection of statistics had been problematic since the implementation of Act began. Statistics were important to measure the impact of the Act and to identify and address challenges in implementation.

Qualitative information was just as important. For example, the Portfolio Committee on Police met the previous week on the CJA, and SAPS counted the number of charges, rather than the number of children entering the system. One child may have multiple charges, so this left out useful information. The DSD on the other hand only counted the number of children. So there was a disparity in how the system flowed which was problematic.

The 2013/2014 Annual Report, for example, gave no statistics on the number of charges brought against children, on the number of children assessed, or on the number of children diverted. It was comparative to other previous financial year reports, but not within the current financial year.

Looking at statistics from the DOJ’s 2012/13 Annual Report, 57 000 charges were brought, but 32 000 assessments were conducted. One could assume then that 32 000 children were processed, as they would all have had assessments. Only 21 000 preliminary inquiries were held and there were 11 000 diversions. 4 500 children went to trial and only 1 400 were sentenced. Therefore, the number of children reaching each stage of the process was decreasing. This should be the case, as children would be diverted out of the system, but the discrepancy was too extreme.

Accountability and oversight
The Judicial Matters Amendment Bill 2 of 2015 would combine the Child Justice Act Annual Report with that of the Departmental Annual Report. This was problematic because the purposes of the reports were different and therefore weakened parliamentary oversight and removed political accountability towards children.

Oversight had thus far been inconsistently applied. The 2010/11 Annual Report was tabled in April 2011 and considered by the Portfolio Committee on Justice and the Portfolio Committee on Police in June 2011. This was a thorough exercise in accountability with a detailed interrogation of the oversight and clear recommendations coming out of the discussion. However, the 2011/12 report was again tabled in April but only considered by the Portfolio Committee on Police in September. The 2012/13 report was considered by the Select Committee on Security and the Select Committee on Constitutional Development, but from the minutes it did not look like an interrogation of oversight but a general discussion on child justice. The 2013/14 report was tabled in June 2014 and had still not been considered by any committee. 

Therefore the Department of Justice was complying with its duty to table reports, but consistent oversight was not being provided and it was unclear with which committees the responsibility for this lay. There was a need for Parliament to strengthen its oversight role. The only way to get to the crux of oversight for this Act would be through a consistent Join Committee held every year.

Recommendations
There was no doubt that the CJA took the best interests of children into account and provided an appropriate justice system for children. However, there was a need for the Executive to reflect more accurately and consistently on the statistics of children in the justice system. Vital information, such as the number of charges brought against children and the number of children diverted cannot be omitted. Parliament needed to strengthen its oversight on the implementation of the Act, and establishing consistency with in its meetings would be the first step to achieve this.

Mr Wakefield also felt that Section 19(3)(a) of the Judicial Matters Amendment Bill 2of 2015 should be rejected or at least given serious consideration and revision.

Issues arising from the Child Justice Act implementation reports
Ms Patricia Whittle, Parliamentary Researcher, Select Committee on Security and Justice, acknowledged all the progress that the Act had made in diverting children away from the criminal justice system in as far as possible. However, there were concerns with the CJA implementation reports, and she discussed the key concerns.

The quality of information in reports was of concern. There were often iinaccurate and contradictory statistics, iinconsistent reporting, a lack of systematic year-on-year reporting, an absence of detailed analysis of the statistics, and gaps in information and statistics.

This meant that there was an inconclusive picture of implementation of the CJA and of children in conflict with the law. Progress as reported by the reports could therefore be in contrast to ‘real progress’ and it was unclear whether as much progress has been made as was implied.

The number of charges had decreased from 75 000 in 2010/11 to 57 000 in 2012/13. However, because the reports only reported on charges and not on the number of arrests, written notices or summons, one could not categorically state whether more or fewer children were being arrested or charged.

There was a decrease in assessments in 2011/12 compared to the previous year, but a substantial increase in 2012/13. A decrease was expected in 2013/14. It was impossible to tell whether all children who were charged were assessed.

The number of preliminary inquiries (PIs) had increased from 14 000 in 2010/11 to 22 000 in 2013/14, but with a notable 15% decrease from 2012/13 to 2013/14. It was hard to tell whether the increase in PIs was good or not. One would need to know how many children were diverted before PIs, how many cases were withdrawn after assessment and so on.

It was concerning that the number of children detained in prison was increasing and the number detained in Child and Youth Care Centres (CYCCs) was decreasing.

1 584 criminal capacity assessments were done in 2011/12 on children aged 11 -14. No other data was provided on the number of criminal capacity assessments done in 2012/13 and 2013/14. The Department of Health had a serious shortage of clinical psychologists and psychiatrists (54 private psychiatrists and 32 private clinical psychologists could do criminal capacity evaluations for courts but they charged very high rates).

Diversion numbers were still much lower than the 2010 figures and it was not clear why. The 2013/14 report said that the National Prosecuting Authority (NPA) had started analysing these trends. In 2010/11 there were 16 000 diversion orders, which had decreased to 10 000 by 2013/13.

Only 3 750 (28%) of 13 094 trials ended in a guilty verdict, while 72% of cases ended in not guilty, acquittals, being withdrawn or struck off the roll. This meant that a high number of children entered the criminal justice system only to be released.

The total number of non-custodial sentences increased from 2010/11 to 2012/13. Community-based sentences saw a 1 045% increase, restorative justice sentences a 270.8% increase, and compulsory residence in a CYCC a 204.5% increase. In 2013/14, the total number of non-custodial sentences decreased by 2.8% in comparison with 2012/13. The largest decrease was in postponement or suspension of passing of sentence (30.4%). Reports lacked information on recidivism, which was important to know in order to measure the impact of the CJA implementation, especially regarding diversion and rehabilitation programmes for children.

Custodial sentences were a measure of last resort, and only for the shortest possible time. Children under 18 and on remand were kept in DCS facilities; no children under 14 could be kept in prison. The total number of custodial sentences decreased by 81.7% between 2010/11 and 2012/13. The problem was the baseline, because the 2010/11 report reported on the number of children in prison serving sentences as of March 2011, but the 2011/12 report reported on the number of children sentenced to imprisonment in 2010/11. Thus the statistics were not comparable.

Regions with the highest number of detained children in 2013/14 were the Eastern Cape (31%) and KwaZulu-Natal (30%), though Gauteng and the Western Cape had the highest inmate population. In 2013 the number of remand detainee children detained for longer than 90 days in DCS facilities increased. Five of the 181 children in remand detention (RD) on 31 March 2014 were detained with the option of bail. The 2013/14 report reflected increased admissions and decreased releases for both RD and sentenced in 2013/14.

The problem was that children in prison overall were reported as decreasing, but the figures did not provide a clear picture of whether the number of children entering the prison system was increasing or decreasing. The reports lacked systematic comparative year-on-year data. DCS admissions and release figures did not provide a clear picture.

Recommendations
It was recommended that there was a need for improved Parliamentary oversight over the implementation of the CJA and the Annual Report, including joint inter-sectoral meetings of relevant Portfolio and Select Committees. Parliament should also review the National Policy Framework, which had to be reviewed every 3 years (on 1 August 2013 the deadline was missed) and the age of criminal capacity (on 1 April 2015 deadline was missed).

The child justice component of the IJS should be fast-tracked and manually reported statistics be improved in the interim. It was necessary to ensure the Annual Reports on the implementation of the CJA provided a picture of ‘real’ progress and challenges.

SAPS should report on: the number of children arrested, issued with written notices, and issued with a summons; the total number of charges (versus arrests), including a breakdown of charges with respect to age, gender, province and type of crime; the number of children under 10 years; the number of children referred to a probation officer or social worker; the capacity with regard to first responders, dedicated CJA police officers, transport and accommodation for children.

DSD should report on the number of children exempted from the assessment process and why they were exempted. The department should differentiate between diversion programmes and diversion orders. Capacity needed to be increased with regard to probation officers and social workers. There should also be a focus on the quality of assessment reports for court, and reporting on the education services and accommodation issues at CYCC, especially regarding facilities for girls.

The DoJCD should provide a provincial, age and gender breakdown of statistics and include more information regarding children used by adults to commit crimes. Data was needed on the number of children diverted before the Preliminary Inquiry, including the number of cases withdrawn after assessment, the number of cases where criminal capacity was unlikely to be proved, a breakdown of the nature of charges of all children arrested or issued with a written notice or summons. Statistics should be included on the number of children in need of care. More information was needed on the training of Prosecutors and Magistrates.

The Department of Health should provide information on the number of children assessed for criminal capacity and the outcome of these assessments, and increase their capacity to perform criminal capacity assessments.

The DCS should present statistics to enable a clear picture of all children in DCS facilities (tracked from the time of entry until their release). There was a need to address disparities in services provided to remand detainee children and sentenced children, especially education services. Information was needed on the percentage of children (remanded and sentenced) offered each service (e.g. social work access, spiritual care, educational programmes, health services etc.) in order to assess how many children benefited from services and how many did not. The Department should report on the number and percentage of children that did not have access to education, where they were based and how these problems would be addressed, as well as the number and percentage of children that did not have regular access to social work and psychological services, where they were based and how these problems would be addressed.

Discussion
The Deputy Minister said that there had been limited time during this dialogue but engagement on these issues was extremely important. The Department would still like to respond to the report produced by the Committee Researchers. The remaining time should be used to look for a way forward.

Ms Benita Moolman, the facilitator, clarified that this was one of a series of dialogues. The purpose was to inform and educate members. There would be space to further engage around issues that had been tabled.

Intersectoral Committee on Child Justice
Ms Nonkululeko Sindane, Director General, DoJCD, was unsure of her role at the dialogue, but would like the opportunity to do a full presentation on the role of the Intersectoral Committee on Child Justice in implementing the CJA. She felt the Committee was put in an unfair position as civil society had an opportunity but the Committee did not.

She shared her observations from experience on the Intersectoral Committee in dealing with child justice. This was only the first five years of the implementation of the Act; it would take time to mature in its implementation. So far progress had been made. Areas where information in reports had still not been provided had been identified and were being worked on. Each year the Intersectoral Committee looked at each section of the Act and considered its limitations.

There was a lack of capacity across the board. No one in the Committee had sufficient capacity. Before the Act came in the Committee said that it did not have the capacity to implement it fully. The amount that had been achieved spoke to this. Implementation had fallen behind because there was not enough capacity, people changed in departments and institutional memory was lost.

The committee had started late and did not meet the deadline to submit the Annual Report. The report would be completed in August or September 2015. The committee was not able to conclude in part because information was not collected in such a way as to give clarity of purpose or to be comparable over the years. Cabinet was informed in advance that the report would be delayed.

Integrating the criminal management system was proving a challenge. There was a lot of investment going into what systems were necessary, the type of technical capacity and the scope of the system itself. Some departments had not connected to the universal hub. This affected reporting on the Child Justice System and on the Criminal Justice System.

The establishment of additional child justice centres had been halted because the Department was trying to work out the infrastructure, resources, and technical capacity needed.

Attrition in the departments was proving a problem as staff left and then their replacements had to be trained again. As such refresher training was constantly being held. This was expensive and the budget was not unlimited. Part of the SAPS training should be tabled before Parliament so that Parliament could see what was in the national instructions. They were trying to develop an accredited training programme so that people could go forward with certificates.

To address the decrease in the number of children being assessed, the Department sought to ensure that between DoJCD and DSD there was a log frame detailing which children were assessed, which were not, and why. DSD had tabled a policy on the accreditation of diversion programmes. They were falling behind in terms of rolling out diversion programmes in part because of capacity on the ground and in part because of resources.

The Department had been seized with the issue of evaluating criminal capacity for the better part of the previous year. There was a need to improve tariffs and publish improved tariffs. This would enable the Department of Health and the Intersectoral Committee to increase assessments because the private sector would be able to assist.

There was no consistency in terms of how reports were tabled, and it took some time for the process to be followed in each department. This caused some difficulty and the Committee had raised the issue with the Department. If the departments had to report separately it would eradicate the intersectoral nature of the report.

Discussion
Ms R Capa (ANC), Chairperson, Portfolio Committee on Social Development, said she understood the challenges being put forward by the speaker from the Intersectoral Committee but they were disappointing because the Fifth Parliament had been dedicated to radical change and so there should be an increase in urgency. Parliamentarians were supposed to receive a progress report. They would rather have these on an ongoing basis. The matter in question was critical for the survival of South Africans. South African children were in a crisis. There was a need to do things speedily. It was difficult to move out of the silo mentality as it had been there for a long time, but it was very important to do this. There should be an opportunity to report to a cluster, rather than reporting to the various committees individually.

Major General Yvonne Botsheleng, SAPS, said the police were showing progress. They had not yet submitted the statistics as needed but this could be done through the Minister.

 Brigadier Mbali Mncadi, SAPS, apologised that there was a communication error and the report had not been provided. This would be rectified as soon as possible. In 2010 a presentation was made to the Portfolio Committee on Police regarding the implementation and planning framework for this, there was also the national instructions.

Ms Venessa Padayachee, Advocacy and Lobbying Manager, NICRO, said that NICRO had been one of the first organisations involved in justice reform 30 years ago. It was good to hear that the DG was reviewing the Act section by section. NICRO was conducting research on capacity that could perhaps dovetail with the research that the DG was doing.

In response to the Deputy Minister’s comments about keeping children close to their families as much as possible, there was a White Paper on families, the importance of which could not be emphasised enough. It was not only important to provide contact but also to build families, as evidence showed that this had a significant impact on rehabilitation and reintegration. Children needed to be appropriately placed, so it would be difficult to decide where to put the centres.

Ms Manapole appealed to the Deputy Minister to raise the issue of reports being submitted in a Cabinet meeting and encourage other Ministers to assist the DG in getting full reports on time. If there was a lack of political will, then this experience would persist.

Prof Julia Sloth-Nielsen, University of Western Cape, said there was a serious gap in the Child Justice Act as there was no oversight of Child and Youth Care Centres. The Legal Aid Board would be able to provide information on which children were being assessed. All children were being represented, which was a huge achievement even globally.

There was no country in the world that could say how many children were locked up. This was a perennial problem and difficulties with statistics beset child justice systems all over the world.

Adv Praise Kambula, Chief Director, DoJCD agreed to collaborate with NICRO on the research. She indicated that the preliminary report had been put together and finalised before 31 March 2015 and was now in the process of conducting the manual collection of the data. Data systems were not historically designed to collect the data now required by Section 96. The Department had submitted a request for suspension until 31 January 2016.

Ms Manapole asked about awareness of the Act and if people like teachers and community policing forums were aware of its contents.

Ms Capa said that the Department should look at its recruitment and retention strategy if people were getting trained and then leaving.

Ms Sindane said that the Intersectoral Committee had programmes targeting communities and schools but they were not sufficiently widespread or intensive enough, which would have to be addressed. Informational material on the Act was available in all South African languages, and the Department tried to distribute this information through libraries, radio and television. More work had to be done in educating parents, as most parents did not want their children to come home after they had been in detention centres and did not visit them. This was a challenge that society had to address.

Mr S Swart (ACDP), Portfolio Committee on Justice and Correctional Services, said that the combination of the Portfolio Committees of Justice and of Correctional Services placed a heavy workload on the Committee and made effective oversight more difficult. He had been involved in the drafting of the Act and appreciated the ongoing involvement of civil society and other Committees.

Ms Manapole closed the dialogue by saying that the objective had been to educate and inform participants about child justice, and this had been achieved. In the Committee’s Strategic Plan one of the aims had been to educate themselves, so it was positive that the Committee was working towards this goal.

 

Share this page: